Local 525, Int'l Brotherhood of Teamsters, Etc.

1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disc valued in excess of $50,000 which it received directly from outside the Commonwealth of Pennsylvania. 3. The Board's current standard for asserting jurisdiction over re- tail enterprises within its statutory jurisdiction is an annual gross volume of business of at least $500,000. Carolina Supplies and Ce- ment Co.. 122 NLRB 88, 89. The Employer's out-of-State purchases, constituting direct inflow under the Board's decision in Siemons Mail- ing Service, 122 NLRB 81, 85, bring its operations within the Board's statutory jurisdiction while its gross volume of business meets the dol- lar volume test in the Board's standard for asserting jurisdiction over retail enterprises. Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the facts here present, the Board would assert jurisdiction over the Employer's operations with respect to labor disputes cognizable under Sections 8, 9, and 10 of the acct. Local 525, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and E. A. Weinel. Case No. 14-CD-98. February 7, 1963 SUPPLEMENTAL DECISION AND ORDER On June 20, 1960, the Board issued a Decision and Determination of Dispute (127 NLRB 1377), following a hearing held pursuant to notice issued under Section 10(k) of the Act. The hearing was conducted in conformity with the Board's then current interpretation of Section 10(k), and was based on the Company's charge that the Respondent Union had engaged in unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act. In its Determination of Dispute the Board in substance determined that the Respondent was not lawfully entitled to force the Company to assign the disputed work to its members. Thereafter the Respondent refused to accept the Determination of Dispute, and the complaint was accordingly issued, alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8(b) (4) (D). On October 26,1960, Trial Examiner Robert E. Mullin issued his Intermediate Report, sustaining the complaint. The Respondent duly filed exceptions thereto and a supporting brief. On January 9, 1961, the Supreme Court of the United States issued an opinion in the case of N.L.R.B. v. Radio d Television Broadcast Engineers Union Local 1212, I.B.E.W., AFL-CIO (CBS). 364 U.S. 573, in substance holding that a Determination of Dispute such as had been issued in this case was not responsive to the statutory mandate of 140 NLRB No. 100. LOCAL 525, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1157 'Section 10(k), and that a subsequent complaint based thereon could not result in an enforceable order. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The aforesaid Supreme Court opinion compelled fundamental reap- praisal of the Board's prior interpretation of Section 10(k), and the Board's careful studies in this connection are responsible for the long lapse of time in this case. On October 17. 1962, after being advised by the Company that it wished to continue to press its charge although the disputed work had long since been completed, the Board issued an order to show cause why it should not reco lsider the Determination of Dispute on the basis of the record made at the original 10 (k) hearing, held in March 1960. Responses were duly filed by the Respondent and an Intervenor, Laborers Union Local 397. The responses satisfy the Board that the March 1960 hearing would not furnish an adequate basis for reconsideration of the Determination ,of Dispute. It is thus apparent that a proper Determination of Dis- pute in this case would require a remand to reopen the hearing for the purpose of adducing extensive evidence no longer considered irrelevant on the merits of the dispute.' However, according to the Company's sole proprietor and chief officer, Weinel, the Company's business was generally located within the geographical jurisdiction of Teamsters Local 729, a different labor organization from the Respondent; where- as the particular project where the work dispute arose was located out- side the geographical jurisdiction of Teamsters Local 729. Further according to Weinel, the Company in all its years of operation, prior to the job here involved, had never assigned work of the type here in dispute to employees represented by the Respondent or any other Teamsters local; and no objection had been raised to such assignment. According to the Respondent's president and assistant business agent, McDuffy, throughout the Repondent's geographical jurisdiction the disputed work belonged to the Teamsters, and the Teamsters did it, although the practice was apparently different in the area where the Company normally operated. In these circumstances, and particularly in view of the fact that the present work dispute arose outside the Company's normal operat- ing area, we think it highly unlikely that adequate evidence could now 1 See International Association of Machinists, Lodge No. 1743 , AFL-CIO (J A. Jones Construction Company ), 135 NLRB 1402, where the Board held , in part , that custom and practice in the particular industry was relevant to the Respondent Union' s claim to the disputed work ; Local Union No. 38, International Brotherhood of Plectrical Work- ers. AFL-CIO (Cleveland Electric Illuuminating Company ), 137 NLRB 1719, where the Board held, in part, that the work assignment made by the Employer, although one of the relevant factors to he considered , "cannot stand as the exclusive basis for determina- tion of a jurisdictional dispute " 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be adduced so long after the disputed work had been completed.2 Ac- cordingly, we shall vacate the Determination of Dispute, dismiss the complaint based thereon, and quash the notice of hearing. [The Board vacated and set aside the Decision and Determination of Dispute, dismissed the complaint, and quashed the notice of hearing.] 2 See Panama City Building and Construction Trades Council, AFL-CIO ( Marvin Ray and Albert Ray, partners, d/b/a Ray Fabricating and Manufacturing Company), 136 NLRB 1002. Steel Equipment Company and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, Petitioner. Case No. 8-RC-4422. Feb- ruary 7, 1963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted by the Regional Director on October 11, 1961, among the employees in the unit described below. After the election, the parties were furnished with a tally of ballots which showed that, of approximately 62 eligible voters, 61 cast valid ballots, of which 34 were against, and 27 for, the Petitioner. The Petitioner filed timely objections to conduct affecting the results and conduct of the election. After investigation, the Regional Director, on November 24, 1961, issued and served upon the parties his report on objections in which he recommended that objection No. 1(d) be sustained and that all other objections be overruled. Thereafter, the Petitioner and the Em- ployer filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner is a labor organization claiming to represent cer- tain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9 (c) (1) and 2(6) and (7) of the Act. 4. The parties stipulated and we find that all production and main- tenance employees, including group leaders and shipping and receiv- ing clerks, but excluding all office clerical employees, guards, profes- 140 NLRB No. 122.